Arkansas’s Cruel and Unusual Killing Spree

By Megan McCracken and Jennifer Moreno

March 20, 2017

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CreditDaniel Zender

Arkansas’s plan to execute eight men in 11 days next month is a recipe for disaster, one entirely of the state’s making.

Although the state has not put anyone to death since November 2005, it now says that it must execute two people per day on April 17, 20, 24 and 27 because its current supply of midazolam, one of its three execution drugs, will expire at the end of the month.

This will be the fastest spate of executions in any state in more than 40 years, placing extraordinary pressure on the execution team and increasing the risk of errors. What’s more, the state’s rationale for the schedule — the expiration date on its supply of midazolam, a common sedative — is faulty, because the drug shouldn’t be used in executions in the first place.

According to 16 pharmacology professors who signed an amicus brief for the Supreme Court, there is “overwhelming scientific consensus” that midazolam is incapable of inducing the “deep, comalike unconsciousness” necessary to ensure a humane and constitutional execution. (We have consulted with lawyers working on a number of the midazolam cases.)

In several botched executions over the past several years, midazolam did not perform as intended or caused prolonged suffering before finally killing the inmate. When Alabama executed Ronald Smith in December, he struggled for 13 minutes after the execution team administered midazolam. Mr. Smith’s chest heaved, and he gasped and coughed and clenched his fist before the second drug paralyzed him.

After Ohio’s execution team gave Dennis McGuire midazolam in January 2014, he struggled and gasped for air. Witnesses said he made snorting and choking sounds until he died, almost 30 minutes later. A federal court blocked the state from continuing to use the drug, finding that midazolam will create “a substantial risk of serious harm.”

Joseph Wood responded similarly during his July 2014 execution in Arizona — except that he gasped and heaved for almost two hours, even though he received 15 times the supposedly lethal dose of midazolam. In response to this episode and to litigation, the Arizona Department of Corrections announced in December that it would never again use midazolam in an execution.

The execution of Clayton Lockett by Oklahoma in April 2014 was particularly gruesome. A doctor and a paramedic struggled to set two IVs in Mr. Lockett’s veins and eventually put one in a vein in his groin. Ten minutes after the doctor injected him with midazolam through that vein, he declared Mr. Lockett unconscious. But the IV became dislodged, and the next two drugs administered went into surrounding tissue instead of his bloodstream.

Mr. Lockett regained consciousness, which indicated that the midazolam had not kept him insensate to the pain of the subsequent drugs, and began to writhe and yell. It took 40 minutes for him to die.

Mr. Lockett’s execution is a cautionary tale, not only about the failures of midazolam as an execution drug, but also about the perils of performing executions back to back. Oklahoma had planned to execute an inmate named Charles Warner the same day as Mr. Lockett, but canceled the second execution after the disastrous outcome of the first.

Investigators from the Oklahoma Department of Public Safety subsequently interviewed the execution team and found that several of them commented on “the feeling of extra stress” for all staff created by scheduling two executions on the same day. The state’s report recommended that executions not be scheduled within seven calendar days of one another “due to manpower and facility concerns.”

If Arkansas were to heed the warning of Oklahoma’s investigators, it would schedule its eight executions over two months. Instead, Arkansas’s execution team, which has not performed an execution in over a decade and has never performed an execution with midazolam, faces a daunting and relentless schedule of two executions per day, repeated four times over 11 days. The pressure on the team will be immense, and it will make mistakes more likely in a situation in which there is no margin for error.

There’s no need for Arkansas to act so recklessly. While Gov. Asa Hutchinson has doubted whether the state will be able to get midazolam in the future, the state has not supported the claim that the drug is unavailable. To be sure, some pharmaceutical companies, including some of the manufacturers of midazolam, do not want to be associated with executions and have made their products unavailable for such use. But other states have obtained midazolam for executions. Ohio, for example, twice purchased large quantities of the drug at the end of 2016.

We have seen this before. For years, states have cited concerns about drug availability to justify extreme secrecy and recklessness in their efforts to get drugs and perform executions. Arkansas is following this playbook to defend rushing through eight executions with a drug that science and experience tell us is wholly inadequate for the task and has already resulted in gruesome executions.

The fact that Arkansas’s supply of midazolam is about to expire does not justify a rushed execution schedule with a dangerous and unreliable drug. The need is nonexistent, and the risk is enormous.

Megan McCracken and Jennifer Moreno are lawyers in the Death Penalty Clinic at the University of California, Berkeley, School of Law.

A version of this article appears in print on , on Page A23 of the New York edition with the headline: A Cruel and Unusual Killing Spree. Order Reprints | Today’s Paper | Subscribe